When Can New Yorkers Start Throwing Axes Again?

The COVID-19 pandemic has put our lives on hold. If you're like me, you can't wait to do normal things again: See friends, go to live events, and start drinking heavily while axe throwing in New York. Unfortunately, after a recent federal decision out of the U.S. District Court for the Northern District, it appears that those tomahawks will have to stay in the closet for another few months, at least. But we can still drink.

This Was Allowed Before the Pandemic?

Governor Andrew Cuomo has been facing public and political pressure to loosen COVID-19 restrictions in the state. He has relented somewhat. For example, movie theaters in New York can now re-open in a limited capacity. As yet, however, the Governor has not lifted the restriction on establishments that engage in the sport of axe throwing while also serving alcohol. Establishments can still serve alcohol, but for some reason axe throwing is prohibited under the myriad regulations issued by Governor Cuomo. The court's decision did not parse what behavior involved in axe throwing is too risky during a pandemic. We are talking about drunken axe throwing, after all. Stacking three risky behaviors on top of one another ended up being too much, apparently?

Rational Basis Review

The Yard Hatchet House & Bar in Albany, New York, challenged Governor Andrew Cuomo's prohibition in federal court, claiming it violated their equal protection rights under the federal and state Constitutions. They were seeking an injunction to prevent New York authorities from enforcing this prohibition.

While legal challenges alleging that state executive orders are unconstitutional are a common sight these days, the Yard Hatchet had a tougher argument. Unlike churches, which have had good success challenging shutdown orders, axe-throwing is not a fundamental right requiring heightened scrutiny by the courts.

As such, U.S. District Judge Mae A. D'Agostino held, the court was required to defer to the state. “[T]he police power retained by the states empowers state officials to address pandemics such as COVID-19 largely without interference from the courts," Judge D'Agostino wrote. In order to successfully challenge the restrictions, The Yard Hatchet would have had to show that it was intentionally treated differently from others similarly situated and that there was no rational basis for doing so.

The Yard Hatchet failed to back up claims that their business was substantially similar to bowling alleys, and the court did not speculate on how they engaged in substantially similar activities. And, because the prohibition is temporary and the Yard Hatchet can stay open in a limited capacity (by serving food and drinks) they did not do enough to show irreparable harm justifying an injunction.

The case will go on, and optimistic axe-throwers can hope that restrictions will be lifted in the coming months, rendering the litigation moot. Until then, dear readers, keep those axes polished and safely stowed away.

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